The question here is whether the plaintiff is entitled to a recovery, over and above the amount of the filed undertaking, for counsel fees incurred in procuring a vacatur of an attachment. Concededly, on the record here, the recovery is not supportable on. the theory of abuse of process or malicious prosecution. Nevertheless, a recovery, of the counsel fees has been directed on the basis that plaintiff possessed a common-law cause of action under a line of decisions holding that proceedings under a void or irregular attachment amount to a trespass. Inasmuch, however, as the attachment stood as a valid and regular process until it was vacated by this court on appeal (see Northern Blvd. & 80th St. Corp. v. Siegel, 16 A D 2d 523), we conclude that plaintiff’s judgment is not sustainable. Furthermore, if the plaintiff is entitled to a recovery on the theory of trespass, the damages awarded should not have included the counsel fees as allowed.
There was no liability at common law for damages resulting from an attachment erroneously granted unless the case was established as one for malicious prosecution. (See City of Yonkers v. Federal Sugar Refining Co., 221 N. Y. 206, 208.) ‘‘On common-law principles, if an attachment ’ ’ regularly issued by a court of competent jurisdiction on sufficient legal grounds “ should afterwards be dissolved, either because the *189action failed, or because, in a contest on the merits, the grounds upon which the attachment was obtained were found unsustainable, the defendant could have no recourse against the plaintiff for damages for the seizure of his property, unless the law required the plaintiff, in order to obtain attachment, to give a bond or undertaking for the payment of such damages. In the absence of such a requirement the defendant has no remedy for such damages, unless the conduct of the plaintiff was such as to give ground for an action for malicious or vexatious prosecution.” (Drake, Attachments [7th ed.], § 114.) Therefore, it is settled in this State that the undertaking is still the source and. measure of liability for an attachment granted in error. (See City of Yonkers v. Federal Sugar Refining Co., supra, p. 209. See, also, Palmer v. Foley, 71 N. Y. 106.)
The attachment issued against plaintiff’s property, “ so long as it remained in force, was a complete justification both to the officer, and the defendants. That cannot be a trespass at the time, which is done by the authority of regular process, duly issued by a court having jurisdiction. ’ ’ (Day v. Bach, 87 N. Y. 56, 59). The foregoing decision, which is particularly relied upon by the majority in sustaining the plaintiff’s judgment herein, is, however, “ a decisive authority that trespass will not lie for the seizure of goods under a valid attachment subsequently vacated for error. The process is a protection to the officer or party for whatever is done under it while in force. The vacation of the process for error does not convert into a trespass that which was legal until it was set aside.” (Hess v. Hess, 117 N. Y. 306, 309.) “ An action for trespass founded on a warrant of attachment later vacated does not lie where the court had jurisdiction of the subject matter and of the parties (McClellan Agency v. Cunningham, Nielsen & Molloy, 22 Misc 2d 372, 374, citing the Day and Hess cases, supra, and also Fischer v. Langbein, 103 N. Y. 84; Bornstein v. Levine, 7 A D 2d 843.)
The attachment procured by the defendants was not invalidated for “irregularity” within the meaning of the decisions authorizing an action in trespass where an attachment was irregularly issued. ‘ ‘ An irregularity in practice may be defined to be the want ,of adherence to some prescribed rule or mode of proceeding. And it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner.” (Farrington v. Root, 10 Misc. 347, 349, quoting from Tidd’s Practice, 512 and citing Bowman v. Tollman, 2 Robt. 632, 634.)
*190Here, the affidavits and the warrants were in proper form and properly executed and attested without defects on the face thereof, a ‘ ‘ proper undertaking was given, and there was a full compliance with all the formal requirements, to justify the issuing of the process.” (See Day v. Bach, supra, p. 58.) Concededly, the court had jurisdiction of the subject matter and of the parties. The warrants, on proceedings duly taken with full opportunity of hearing, were sustained at Special Term. On appeal to this court, however, the warrants were vacated on the ground of error in law in the failure of the plaintiffs (defendants here) to show a cause of action of a nature supporting the remedy of attachment. (See Civ. Prac. Act, § 903; Northern Blvd. & 80th St. Corp. v. Siegel, 16 A D 2d 523, supra.) The warrants, representing regular and valid process, afforded full protection for the proceedings thereunder until they were set aside by this court. Although founded on an insufficient affidavit, the warrants were not void or irregular. (Subin v. United States Fid. & Guar. Co., 12 A D 2d 49; Farrington v. Root, supra, p. 349.) Under the circumstances, the vacatur was for impropriety as distinguished from irregularity and, thus, the only redress was upon the undertaking. (Subin v. United States Fid. & Guar. Co., supra, p. 52.)
Finally, even if the plaintiff should be held to be entitled to a recovery on theory of trespass or conversion, the damages recoverable should be limited to the injury and loss directly sustained by reason of the interference with plaintiff’s possession of the money or property attached. The right of recovery on such theory should not be extended to include the counsel fees or litigating expenses incurred by plaintiff. This is in accordance with the well-settled rule that, absent proof of malice, there can be no recovery as damages for counsel fees or other expenses incurred in defending against process lawfully issued and legal proceedings lawfully taken thereon; the party is limited to the costs prescribed by law. (See 25 C. J. S., Damages, § 50; 63 C. J., Trespass, § 233; 77 C. J. S., Replevin, § 282. See, also, Sinskie v. Brust, 66 App. Div. 34; Cook v. Gross, 60 App. Div. 446; Hampton & Branchville R. R. Co. v. Sizer, 35 Misc. 391.)
The judgment should be modified to restrict the recovery against the appellants to the amount of the undertaking, with interest and costs.
Steveks and Steuer, JJ., concur with Capozzoli, J.; Eager, J., dissents in opinion in which Botein, P. J., concurs.
*191Order entered on July 7, 1965, affirmed and the judgment granted thereon modified, on the law and the facts, to the extent of reducing the amount given for legal services to $4,000, and as so modified, affirmed, without costs and without disbursements.